Saying it should be no different than applying for a job, state lawmakers are moving to allow the Department of Economic Security to require drug tests of those seeking unemployment insurance.

But the legality of the move remains in question.

SB 1495, which gained preliminary Senate approval this past week, is being pushed by Sen. Steve Smith, R-Maricopa.

“With near-record rates of unemployment that we’ve seen over the last year or so, if you are fortunate enough for your state to pay you while you’re looking for a job, as far as I’m concerned, the very least you should be is in a suitable state of mind to search for a job,” he said. “If you are on drugs, you cannot pass a drug test, odds are you can’t pass an interview — if you’re going on them as you’re supposed to be.”

Smith’s original legislation called not only for all applicants to pass a drug test as a first step in eligibility but also mandatory testing for those already receiving benefits. But he agreed to scale that second half back, instead authorizing random tests for current recipients.

Anyone who fails would be denied benefits for 30 days but could reapply at that time.

The legislation also authorizes random drug tests for those who already have been approved. A positive test means the loss of that month’s benefits and a requirement for monthly tests for the next six months; a second failure kills benefits, with no new application allowed for another six months.

Several other states have imposed similar requirements.

But Ellen Katz, an attorney with the William E. Morris Institute for Justice, said these probably pass legal muster because they are predicated on some reasonable suspicion; Smith’s proposal does not.

“This bill allows suspicionless search and seizures,” she said.

“Under federal law, a drug test is a search and seizure,” Katz explained. “And it has to comply with the Fourth Amendment.”

Her contention was backed by DES lobbyist Erin Raden.

“In our initial analysis ... we do think there would be some severe conformity problems with federal law,” she said. And that, Raden said, would endanger the $27 million Arizona gets in federal funds to administer the program.

A new federal law that took effect last month does specifically permit states to drug test applicants for unemployment insurance.

Sen. David Lujan, D-Phoenix, however, said that is limited to two circumstances: Where the worker was fired for a drug-related offense or where the only suitable work for the applicant is in a field where drug testing is mandatory, like an interstate truck drive.

There are other concerns.

Sen. Rich Crandall, R-Mesa, pointed out the legislation says that the cost of the drug test must be borne by the applicant.

“This is a person who has just been laid off, got their very last paycheck, and we’re going to say, hey, you have to pony up this money,” he said, even if the person has never used drug. “I struggle with that part of the bill.”

Smith said the drug tests are “very inexpensive,” with estimates in the $8 to $13 range. Anyway, he said, there is no reason the state should pick up the tab.

“The taxpayer is already paying your monthly salary,” he said.

Sen. Ron Gould, R-Lake Havasu City, said that’s not exactly correct. He pointed out that benefits come from a special insurance fund which is financed by assessments against employers.

Smith said that’s irrelevant.

“The bottom line is, somebody else is paying,” he said.

Sen. Al Melvin, R-Tucson, said he sees another benefit to mandatory drug testing. He cited the violence in Mexico linked to drug cartels.

“If we can cut down on the demand here, that’s a good thing for our country,” he said.

The legislation already has been approved by the Senate Appropriations Committee.

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